Military Leave: Know Your Duties

Q. Can I have an agreement with an employee not to join the National Guard or Reserves?

Note: When you discipline any employee — not just members of the Guard or Reserves — and you are sued, a judge will view your case more favorably if you use progressive disciplinary measures and document your case. Progressive disciplinary measures include an oral warning, a written warning, a suspension-without-pay and finally, termination. Documentation is best when you make written notes of these steps and include them in an employee’s personnel file.

1. No. Federal and state laws encourage military service. There’s not a court in the land that would recognize such an agreement.
2. What obligations do I have when employees are in the Guard and Reserves?
3. Here’s a summary of how the military leave laws affect the employer:

• The law recognizes no limit on the frequency or duration of military leaves. A reservist or National Guard member might require a leave for an afternoon, a weekend, a few weeks, months or years.
• The employer has no right to deny the request for military leave or to veto the timing of the military leave. The timing, frequency and duration of the military leave are determined by the military authorities.
• You do not have to pay the Reservist or Guard member for work time lost to military obligations.
• Normally, members of the Guard or Reserves away for less than 31 days must report back to work on the first regularly scheduled shift after the completion of a drill. If the employee is gone for 31 to 180 days, he or she must reapply within 14 days after the end of the service. If the employee is gone for 181 days or more, he or she must reapply for employment within 90 days after the end of service. If the employee is hospitalized or convalescing from a service-connected injury or illness these deadlines can be extended up to two years.
• After an extended military leave (lasting from several months to four or five years in length), you must offer to re-employ the former employee. If the same position isn’t available, you need to reinstate the employee in a comparable position with comparable pay.
• Employees serving more than 180 days cannot be terminated without cause for 12 months after returning. Employees serving 31 to 180 days can’t be discharged without cause for six months after returning to work. Employees serving 30 days or less can be discharged without cause.
• Time lost to military training will not interfere with the employee’s “continuous service” status for pension purposes. Neither will this lost time affect other benefits. Example: You can’t require an employee to use earned vacation time for military training. The only exceptions to this rule are when the employee is no longer qualified for the job or when your business circumstances have so greatly changed that it is “impossible or unreasonable” to reemploy the veteran.

Like most employers you probably find burdensome the unlimited time and duration of military leaves.

Example: Greg, one of your salespeople, joins the Air Force Reserves. Because he’s never before been in the military, he needs to go through basic training. This initial training period lasts anywhere from several weeks to several months.

After basic training Greg will acquire a special skill, such as the ability to repair airplanes. Training for this skill may run back-to-back with basic training. It may follow shortly thereafter. Again, this training may last from several weeks to several weeks to several months.

After completion of basic training, Greg has 31 days to report back to work.

At this point, Greg’s drill schedule may be like those of most members of the Guard or Reserves. Military leave may amount to only two weeks a year and/or one weekend a month.

But Americans are increasingly concerned with national defense. The Pentagon is placing increased demands on the Guard and Reserves. In turn, employers must increasingly bow to additional requests for military leaves.

Example: The Air Guard unit in which Greg is assigned must replace transport planes with fighter planes. New planes necessitate new training. Greg may be gone anywhere from a few days to a few months.

Let’s imagine that Greg advances in rank.

Example: Greg earns a commission as sergeant or as a lieutenant. The increased responsibilities associated with these ranks necessitates an increased time commitment. This shows in the form of more training and technical conferences.

It would be the unusual example, though not unheard of, for Greg to spend a period of several years on military leave. When Greg comes back from this leave, you are required to return him to the same or similar position and salary as he held prior to the leave.

Again, the only exceptions to this rule are when Greg can no longer perform the job, or when it is impossible or unreasonable to rehire him.

1. What will happen if I terminate employees when they can’t keep regular hours because of their military obligations?
2. You’ll find yourself in legal trouble. Most likely, a court will eventually order you to reinstate the employee and to pay lost wages and benefits.
3. With all these restrictions, what rights do I have? Let’s say I discipline an employee for a tardiness problem. But he claims the real reason for the disciplinary action was my disapproval of his military commitments.
4. The employee may make this accusation. But you can discipline and terminate an employee-member of the Guard or Reserves if you clearly establish the disciplinary action is job-related.

Example: Few courts would interfere with your right to discharge an employee after he provoked a fist fight with his supervisor.